People v. Lopez CA2/6

Filed 3/21/16 P. v. Lopez CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B261343 (Super. Ct. No. 2013033515) Plaintiff and Respondent, (Super. Ct. No. 2011007300) (Ventura County) v.

CHARLEY LOPEZ,

Defendant and Appellant.

Charley Lopez appeals his conviction by jury for three counts of second degree robbery (Pen. Code, § 211) with special findings that he personally used a shotgun in the first robbery (§ 12022.53, subd. (b)) and a knife in the second and third robberies 1 (§ 12022, subd. (b)). Appellant admitted suffering a prior strike conviction (§§ 667, subds. (c) & (e)(1); 1172.12, subds. (a)(1) & (c)(1)) and a prior serious felony conviction (§ 667, subd. (a)(1)), and was sentenced to 25 years eight months state prison. In Case Number 2011007300, the trial court revoked probation and imposed a consecutive two-

1 All statutory references are to the Penal Code unless otherwise stated.

2 year sentence. Appellant contends that the evidence does not support the finding that he used a "real" firearm and that he was denied ineffective assistance of counsel. We affirm. Facts and Procedural History Appellant ("Little Malo"), an active member of the Colonia Chiques gang, robbed Adrian Alvarado and Eric Ramirez on the street on June 26, 2013 at 8:00 p.m. Appellant brandished a knife and had a bandana or T-shirt over his face. He took two Playstation controllers and three games from Alvarado and threatened to "whack" him if Alvarado reported the crimes. Alvarado's companion, Ramirez refused to give up his cell phone. Appellant put the knife against Ramirez's abdomen, took the phone, and fled. Alvarado called 911 and identified appellant in a photo lineup. Alvarado said the robber lived in the neighborhood and went by the name "Malo." Ninety minutes after the Alvarado/Ramirez robbery, appellant and a man approached Rodolfo Gaytan. Brandishing a sawed off shotgun, appellant told Gaytan "Don't move or I'll shoot." Appellant had a T-shirt over his face but Gaytan recognized appellant's eyes and voice. Appellant's accomplice pointed a revolver at two teenagers (Alejandro A. and his younger brother Jesus A.) who were playing nearby with a plastic BB gun. Appellant told them to drop the BB gun. Appellant told Gaytan not to call the police and slapped his cell phone out of his hand. As Gaytan reached down to pick up the phone, appellant grabbed his wallet and fled. The wallet contained $30. Gaytan initially thought appellant was "just playing around" and that the shotgun was a toy because two teenagers were playing nearby with a toy BB gun. Gaytan realized it was a real shotgun when appellant poked him in the back with the cold metal barrel. Gaytan said that it was a 12 gauge shotgun, and that it had a wood stock and was about two feet long.